The following papers were read on Claimant's application pursuant to CPLR §
2221 seeking to renew and/or reargue prior motions (M-68929, M-68993 and
M-69292) which resulted in an Order dated January 31, 2005 (filed February 15,
2005) which dismissed the Claim:

Decision and Order of the Hon. Richard E. Sise, dated January 31, 2005

and filed February 15, 2005.

On February 15, 2005, the Court granted the State's motion and dismissed the
instant Claim for lack of jurisdiction because Claimant failed to timely serve
the Defendant with the Claim pursuant to Court of Claims Act § 11 (Best
v New York State Dept. Of Motor Vehicles, Ct Cl, February 15, 2005,
Sise,J., Claim No. 108936, Motion Nos. M-68929, M-68993, M-69292). Claimant
now moves pursuant to CPLR § 2221, and CPLR § 5015 for leave to renew
and/or reargue this Court's prior decision based upon newly discovered
evidence. Defendant opposes the instant motion.

A motion pursuant to CPLR § 5015 is addressed to the sound discretion of
the Court following the issuance of a trial decision and is used as relief for
setting aside a trial decision based upon one of the grounds enumerated in the
rule. As this Court has not conducted a trial of the Claim, Claimant's
application pursuant to CPLR § 5015 is misplaced, but rather is properly
made as an application pursuant to CPLR § 2221.

A motion for reargument, addressed to the discretion of the Court, is designed
to afford a party an opportunity to establish that the Court overlooked or
misapprehended the relevant facts or misapplied the controlling principle of law
(Schneider v Solowey, 141 AD2d 813; Foley v Roche, 68 AD2d 558).
Its purpose is not to serve as a vehicle to permit an unsuccessful party to
argue once again the very questions previously decided (Pahl Equip. Corp. v
Kassis, 182 AD2d 22; Fosdick v Town of Hempstead, 126 NY 651). If
such a motion contains new proof, it is a "renewal" motion, rather than a
"reargument" motion, and should be treated as such (Siegel, Practice
Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C2221:7, at 182).
An application for leave to renew must be based upon additional material facts
which existed at the time the prior motion was made but which were not then
known to the party seeking leave to renew and which, therefore, were not made
known to the Court (Matter of Beiny v Wynyard, 132 AD2d 190, lv dism
71 NY2d 994). Moreover, renewal should be denied where the party fails to
offer a valid excuse for not submitting the additional facts upon the original
application, and the remedy should not be available where a party has proceeded
on one legal theory on the assumption that what has been submitted is
sufficient, and thereafter sought to move again on a different legal argument
merely because he was unsuccessful upon the original application (Foley v
Roche, 68 AD2d 558).

Assuming arguendo, that the Court were to grant Claimant's motion to reargue,
his motion to renew would be denied because Claimant has failed to establish
additional material facts which existed at the time the prior motion was made
but which were not then known to the Claimant or made known to the Court.
Claimant's motion merely rehashes the same factual allegations and legal
arguments previously rejected by this Court. Claimant's proper avenue is an
appeal. Accordingly, to the extent that Claimant's motion seeks renewal, the
motion is denied.

In the event that Claimant is seeking permission for late filing (Best
"Affirmation" II

¶ 6 ), the Court can only consider such action when a proper application is
made pursuant to the requirements of Court of Claims Act § 10 (6).